Gwinnup v. Sibert

BROADDUS, J. The plaintiff sues for commission for sale of land. It is conceded that defendants verbally authorized plaintiff to sell certain land belonging to Mary A. Sibert, wife of defendant J. P. Sibert; that he procured a purchaser at defendants’ price who was able to and offered to pay for the land, but that defendants refused to consummate the transaction and sold to another party. Defendants contend that plaintiff’s contract was not in writing and that the sale was not consummated. The statute of frauds, section 314, Revised Statutes 1899, upon which defendants rely is as follows: “And no contract for the sale of lands made by an agent shall be binding upon the principal unless such agent is authorized in writing to make said contract. ” This question is not a new one in this State. In Hurst v. Randall, 68 Mo. App. 503, the court' held, in speaking of a sale made by the agent who had no written authority from this principal to make the sale, that, “it was not necessary that plaintiffs should show a written authority to act as real estate agents in order to entitle them to recover for finding a purchaser ready, able and willing to take defendants’ property at the price given them for its sale.” See also, Gelatt v. Ridge, 117 Mo. 553. Nor is it indispensable that the sale should be consummated in order that the agent may claim his commission. The rule is established by numerous decisions that “If an agent employed to sell real estate finds a purchaser who is both able and willing to purchase the real estate on the authorized terms, his right to commissions will not be impaired by default of his principal in refusing to consummate the sale.” Reeves v. Vette, 62 Mo. App. 440; Tyler v. Parr, 52 Mo. 249; Jones v. Berry, 37 Mo. App. 130; Gelatt v. Ridge, 117 Mo. 553. The cases to the same effect are too numerous for citation. [713] It is also insisted that plaintiff was not authorized to recover under the evidence upon his cause of action as stated. The statement is as follows: “Linneus, Mo., June 9, 1902. “Mary A. Sihert and James F. Sibert her husband, “ To F. M. Gwinnup, Dr. “To commission for selling farm, to-wit: The southeast quarter^ of the northeast quarter, section 18, also the east half of the southeast quarter of said section 18, all in township 58 of range as 21, Linn county, Missouri, per verbal contract. Two hundred dolíais. “F. M. Gwinnup.” The argument of appellants is that the action is not based upon services of plaintiff for procuring a purchaser able' and willing to purchase, but for a sale. Whereas, the evidence shows that there was no sale. But ■plaintiff did make the sale. Defendants agreed to sell and the purchaser paid ten dollars of the price. That was all plaintiff undertook under his contract, and it does not lie in the mouths of defendants to say because they refused to carry out their agreement, that there was no sale. Objection is also made against the judgment because it is rendered against defendants for $200 and against the security on the appeal bond taken in the justice’s court for $75, that being the amount of said bond. Section 4081, Revised Statutes 1899, which governs, is as follows: “In all cases of appeal from a justice’s court, if the judgment of the justice be affirmed, or if, on a trial anew in thé appellate court, the judgment be against appellant, such judgment shall be rendered against him and his securities.” The judgment'seems to be a substantial compliance with the statute. Finding no error in the record, the cause is affirmed. All concur.